Penobscot R. Co. v. Mayo

• Decision Date: 21 January 1878
• Citation: 67 Me. 470
• Parties: PENOBSCOT RAILROAD COMPANY v. GIDEON MAYO.
• Court: Maine Supreme Court

67 Me. 470

PENOBSCOT RAILROAD COMPANY v. GIDEON MAYO.

Supreme Judicial Court of Maine.

January 21, 1878

ON EXCEPTIONS.

ASSUMPSIT. The writ was dated January 3, 1870, and contained three counts stated in 60 Me. 306. A statement of the case is also given with the findings of the referee in 65 Me. 566. The case was recommitted to the referee, who reported certain facts and rulings at the January term, 1877, and closed his report and award as follows:

" Upon the foregoing facts and findings I rule

1. That upon the first count in this writ, being on the account annexed for $40,400, the plaintiffs are not entitled to recover; and this ruling I make upon the authority of the opinion of the court in this case contained in the 60th volume of the Maine Reports.

2. That on the third count in the writ, being the direct count on the $4000 note, the plaintiffs are not entitled to recover, for the reason that the recovery thereon is barred by the statute of limitations; and this ruling I render upon the authority of the opinion of the court in this case contained in the 65th volume of Maine Reports.

3. The second count in the writ is for money had and received, with the specification, in substance, that plaintiffs would prove under it the procuring of said $4000 note July 13, 1864, by defendant, by his false representations that he had received no ronsideration or payment for the bonds for which he had given

And it remains only to determine whether this count is to be regarded as a count upon the note itself, which would be barred by the statute of limitations, or as such a count as can bring the case within R. S., c. 81, § 92, and would not be so barred.

Upon this point (as matter of law) I rule that this count is not such as can bring the case within said provision of R. S but that it is in substance a count upon the note itself and is therefore barred by the statute of limitations.

I do therefore make this my final award and determination in the premises, that the said defendant recover of said plaintiffs the costs of reference, taxed at fifty dollars, together with the costs of court, to be taxed by the court.

(Signed) S. F. Humphrey, Referee."

The plaintiff in interest, N. Wilson, filed objections to the acceptance of the report and to the rulings of the referee in matters of law, and particularly to the third ruling in substance that, although he had found concealment and fraud and that the facts had not come to the knowledge of the plaintiffs prior to January 7, 1868, yet he had found that the action, commenced January 3, 1870, was barred by the statute of limitations; that in an action for money had and received by a payee against the maker of a note who procures it to be given up to him through fraud without payment, the statute of limitations begins to run at the maturity of the note, as in account on the note itself, though the fraud was not discovered till long afterwards.

The presiding justice, pro forma, overruled the objections and accepted the report and award of the referee and the plaintiffs alleged exceptions.

A Sanborn, with N. Wilson, for the plaintiffs.

C. P. Stetson, for the defendant.

I submit this case on the authority of 60 Me. 306, and 65 Me. 566. It has been very fully argued and carefully considered in these two cases, and further comments are unnecessary. " Interest reipublicæ ut sit finis litium. "

LIBBEY J.

This action is brought by N. Wilson, in the name of the plaintiff, as assignee or pledgee of the claim in suit. It has twice before been before this court. Penobscot Railroad v. Mayo, 60 Me. 306. Same v. Same, 65 Me. 566. By the exceptions either party may refer to the former reports. The nominal plaintiff has no interest in the subject matter of the suit. So far as it had any interest it has been discharged. Penobscot Railroad v. Mayo, 60 Me. 306, supra. The suit is prosecuted for the benefit of Wilson only. The writ contains three counts. 1. On an account annexed. 2. Money had and received. 3. On a promissory note for $4000 given by defendant to plaintiff dated May 28, 1862, payable in one year with interest. The action was commenced January 3, 1870. Defendant pleaded and relies upon the statute of limitations. The case was referred under a rule of court on legal principles, the referee to report any facts and questions of law that either party might desire with right of exceptions. So far as is material for the consideration of the questions involved, the following facts appear from the reports of the referee: On the 28th of May, 1862, the plaintiff sold to the defendant $68,700 of its bonds for $4000, the defendant giving his note therefor, payable in one year with interest. The plaintiff corporation by vote of the same date, pledged the note to the directors as security for the several amounts by them advanced to the company and then due them, and when collected to be divided among them in proportion to the sum actually due to each. When the defendant gave the note it was verbally agreed between the parties that if he did not sell the bonds or receive any compensation for them, his note should be canceled and given up to him without pay. On the 13th of July, 1864, the defendant falsely and fraudulently represented to the directors of the plaintiff corporation that he had turned over the bonds to the European and North American Railway Co., which had become the purchaser of all the property of the plaintiff, without pay or compensation therefor, suppressing the fact that he had previously sold the bonds and received therefor $22,900 in the bonds of the European and North American Railway Co., and thereby procured the surrender of his note without payment. The fraud was concealed by the defendant and did not come to the knowledge of the plaintiff till January 7, 1868. The account annexed to the writ contains the following item: " 1864, July 13: To your note of $4000, on interest from May 28, 1862, given up by reason of your false representation that you had surrendered the bonds for which it was given without consideration or payment, and it was therefore to be given up and canceled, whereas you had sold and received pay for said bonds in October, 1863, long prior to getting it up, $6,400." In the writ the plaintiff specified that, under the second count, it will prove " the account annexed and that the money was received by the defendant to the use of the plaintiff." Upon these facts the referee finds, as matter of law, that the action can only be maintained on the note declared on in the third count, and that the action is barred by the statute of limitations. If the first finding is correct, it follows that the action is barred. This court so held in 65 Me. 566, supra. That decision is invoked by the counsel for the defendant as decisive of the case as now presented. We think it is not.

Undoubtedly the plaintiff can maintain an action for the fraud of the defendant in procuring the surrender of the note without payment. It...